EXHIBIT 10.3(a)
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MEMBER CONTROL AGREEMENT
OF
DRF 12000 PORTLAND LLC
Date: March 16, 2000
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DRF 12000 PORTLAND LLC
MEMBER CONTROL AGREEMENT
THIS MEMBER CONTROL AGREEMENT is entered into as of the 16th day of
March, 2000, by and among Telex Communications, Inc., a Delaware corporation
("Telex"), and DRF TEL LLC, a Minnesota limited liability company ("DRF"; Telex
and DRF being individually, a "Member" and collectively the "Members").
ARTICLE I
FORMATION OF COMPANY, TRANSFER OF PARTNERSHIP INTERESTS
AND STATEMENT OF AGREEMENT
The parties hereto do hereby agree to become the Members of DRF 12000
Portland LLC, organized under, and whose business is to be conducted to comply
with, the provisions of the Minnesota statutes.
1.1 Name. The name of the Company shall be "DRF 12000 PORTLAND
LLC" and such other proper trade names as the Manager may determine.
1.2. Principal Place of Business. The principal place of business of
the Company shall be located at c/o Frauenshuh Companies, 0000 Xxxx 00xx Xxxxxx,
Xxxxx 000, Xxxxxxxxxxx, XX 00000, or such other place as the Manager may from
time to time determine. The Manager may in its sole discretion establish
additional places of business and qualify the Company to carry-on business in
other states.
1.3. Designation of Members. The names and addresses of the Members are
set forth in Schedule 1 and each Member's Membership Percentage Interest is set
forth in Schedule 1.
1.4. Term. The Company shall continue to December 31, 2030 unless
sooner terminated as hereinafter provided.
ARTICLE II
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliates" means any person or entity described in Section 267(b) of
the Code. For purposes of the foregoing test, the interest of all Members who
have interests in the same entity shall be aggregated with respect to their
interest in the Company and such other entity.
"Capital Account" means the account of a Member which is maintained in
accordance with the provisions of Article IV.
"Code" means the Internal Revenue Code of 1986, as amended, or
corresponding provisions of future law.
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"Consent" means the written consent to or approval of a decision or
action.
"Distribution" means the distributions to the Members or holders of
Financial Rights of cash or other assets of the Company made from time to time
pursuant to the provisions of this Agreement.
"Financial Rights" means a Member's rights to share in profits and
losses and Distributions with respect to a Membership Interest in accordance
with the terms of this Agreement.
"Governance Rights" means all of a Member's rights as a member in the
Company other than Financial Rights and the right to assign Financial Rights.
"Lease" means that certain lease agreement of even date herewith
between the Company and Telex covering the Property.
"Manager" means a person elected, appointed, or otherwise designated as
a Manager by the Members, and any other person considered elected as a Manager
pursuant to the Act. Until such time as the Members appoint additional managers,
Xxxxx X. Xxxxxxxxxx and Xxxxx X. XxXxx shall be the sole Managers of the
Company. Any additional Managers or successor Managers shall be appointed by DRF
with the approval of Telex.
"Member" means Telex, DRF, and their respective successors and assigns
as the owner of some Governance Rights in the Company.
"Membership Interest" means a Member's interest in the Company
consisting of the Member's Financial Rights, the Member's right to assign
Financial Rights, the Member's Governance Rights, and the Member's right to
assign Governance Rights.
"Membership Percentage Interest" of a Member means such Member's
percentage for sharing profit and loss and Distributions as initially specified
in Schedule 1.
"Person" means an individual, corporation, partnership, trust or other
legal entity.
"Property" means the real estate and any improvements constructed
thereon described on Exhibit A attached hereto.
ARTICLE III
PURPOSES AND POWERS
3.1 Purposes of the Company. The purposes for which the Company is
formed are solely as follows: (a) to own the Property; (b) to lease the
Property; (c) to manage the Property; (d) to sell, exchange or transfer the
Property; and (e) to do any and all things reasonably necessary or incidental to
the achievement of the foregoing purposes.
3.2 Powers of the Company. In order to carry out its purposes, and not
in limitation thereof, the Company is empowered and authorized to do any and all
acts and things necessary and incidental to or convenient for the furtherance
and accomplishment of its purpose, and for the protection and benefit of the
Company, including, but not limited to, the following:
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(a) Construct, operate, maintain, improve, buy, acquire, own,
sell, convey, assign, mortgage, refinance, rent or lease any real property and
any personal property (including goodwill) in furtherance of the purposes of the
Company;
(b) Borrow money, issue evidences of indebtedness and otherwise
incur obligations in furtherance of the Company business except as hereinafter
provided, and secure any such indebtedness by mortgage, pledge, or other lien;
provided that no Member shall have any personal liability on any indebtedness
without the express written consent of such Member;
(c) Enter into any partnership, joint venture or other activity
with any other Person in furtherance of the purposes of the Company;
(d) Confess judgment, submit claims or liabilities to arbitration,
make assignments for the benefit of creditors and institute, defend or engage in
legal proceedings of any nature whatsoever relating to the Company; including
proceedings for reorganization, composition, arrangement or relief from Company
obligations; and
(e) Enter into and perform any kind of activity, agreement or
contract of any kind in furtherance of the purposes of the Company.
3.3 Exercise of Powers. All actions of the Company shall be taken
through the Manager, alone, as provided in Article VII, subject to any explicit
limitations contained in this Agreement.
3.4 Voting. Members shall be entitled to vote on all matters as
provided for herein and shall vote in proportion to their respective Membership
Percentage Interest.
3.5 Limitation. Notwithstanding anything in this Agreement to the
contrary, so long as that certain loan from Artesia Mortgage Capital Corporation
the funds from which were used to acquire the Property remains outstanding
pursuant to the note and mortgage given by the Company to evidence and secure
such loan, the Company will not file or consent to the filing of any petition,
either voluntary or involuntary, to take advantage of any applicable insolvency,
bankruptcy, liquidation or reorganization statute, or make an assignment for the
benefit of creditors without the affirmative vote of the Managers of the
Company.
ARTICLE IV
CAPITAL
4.1 Capital Accounts. A separate Capital Account shall be maintained
for each Member. The initial balances in the Capital Account for each Member
shall consist of the initial capital contribution of such Member. Capital
Accounts shall be maintained at all times in accordance with the Code and all
regulations promulgated thereunder. Telex shall make an initial capital
contribution to the Company of $550,000.00, and DRF shall make an initial
capital contribution of $1,108,000.00. Notwithstanding anything to the contrary
in this Agreement and except in the event of a liquidation, DRF shall retain a
minimum of $271,000 (or 3% of the total cost of acquiring the Property, if
greater) of its initial capital contribution in its Capital Account to satisfy
generally accepted accounting principles and the Security and Exchange
Commission requirements for the creating and maintaining of a special
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purpose entity such that the financial statements of the Company shall not be
consolidated with Telex financial statements. The source of funds for such
portion of DRF's initial capital contribution shall not be financed with
non-recourse debt that is collateralized by a pledge of DRF's Membership
Interest or Financial Rights in the Company.
4.2 No Right to Return of Contributions. The Members shall have no
right to the withdrawal or the return of their respective contributions to the
capital of the Company except to the extent a Distribution is treated as a
return of capital pursuant to Section 6.3 and is approved in writing by Telex or
upon liquidation of the Company pursuant to Section 13.2.
4.3 No Interest on Capital. No interest shall be paid by the
Company on the initial or any subsequent contributions to the capital of the
Company.
4.4 Voluntary Loans to Company. The Members may make voluntary loans
to the Company from time to time for any Company purpose, including payment of
fees to Members, as authorized by the Manager. Any such loans shall not be
treated as contributions to the capital of the company for any purpose
hereunder, nor entitle such Member to any increase in his or her share of the
profits and losses and cash distribution of the Company. However, the Company
shall be obligated to such Member for the amount of any such loans, with
interest thereon set at the Prime Rate of interest plus five percent (5%), as
set forth in any agreement creating or evidencing such loan.
4.5 Additional Contributions and Loans by Members.
(a) Except for the initial contribution under Section 4.1 and
as provided in this Section 4.5, no Member shall be obligated to make any
additional contributions to the capital of the Company or to make any loans to
or pay any assessments to the Company, and no Member shall be required to
contribute additional capital solely by virtue of having a negative capital
account.
(b) If required by the Manager, the Members shall advance to
the Company any monies required to pay current expenses, current indebtedness or
any other current financial obligations of the Company which are not funded by
loans to the Company, its gross income or contributions to the capital of the
Company, in proportion to the respective Membership Percentage Interests of the
Members. Such advances shall be deemed "Working Capital Loans". Anything herein
to the contrary notwithstanding, a loan from any affiliate of a Member shall not
be deemed a Working Capital Loan. Requirements for working capital shall be
determined by the Manager and any calls shall be paid within fifteen (15) days
of notice of such call. All Working Capital Loans shall be deemed loans to the
Company and shall be repaid (with interest in the case of advance of
deficiencies only) from the first available funds received by the Company prior
to any other Distributions to Members and, except as provided in Section 4.5(c),
repayment shall be made solely from the assets of the Company and no Member
shall have any liability for the repayment of such Working Capital Loans.
(c) If any Member (the "Non-Contributing Member") is unable or
fails or neglects to advance or contribute its proportionate share of the
required Working Capital Loan, any other Member (the "Contributing Member") may,
but shall not be required to, advance such deficiency or any portion thereof
(the "Advance"). If more than one Member elects to be a Contributing Member,
such Contributing Member shall allocate the Advance between themselves in
proportion to their respective Membership Percentage Interest. (For convenience
of drafting, the remainder of this Section 4.5 uses the
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singular in all cases even though there may be more than one Contributing Member
or Non-Contributing Member.) Any such Advance by a Contributing Member shall
also be considered a loan to the Company but (i) shall bear interest at the rate
equal to five percentage points above the rate publicly announced by Norwest
Bank N.A., Minneapolis, Minnesota or its successor as its "prime rate" or
"reference rate" (the "Prime Rate") on the date such advance is made, (ii)
repayment of such Advance plus interest shall be a personal obligation of the
Non-Contributing Member, and (iii) such Advance plus interest shall be repaid
either from the assets of the Non-Contributing Member or from the portion of all
Company distributions otherwise distributable to the Non-Contributing Member.
(d) If the Advance plus interest has not been repaid from either
the Non-Contributing Member's share of Company distributions or directly by the
Non-Contributing Member within eighteen (18) months after the date of the
Advance, the Non-Contributing Member shall, at the option of the Contributing
Member, assign a portion of its total Membership Interest determined as follows:
(i) the fair market value of the Company assets less Company liabilities shall
be determined by agreement of the parties or by appraisal (using the procedures
provided in Section 4.5 hereof) as of the date upon which the portion of the
Company Interest shall be transferred, (ii) such fair market value shall be
divided by 100 to establish the value of a Membership Percentage Interest of one
percent, and (iii) a Membership Percentage Interest having a value equal to the
amount of the Advance plus accrued interest thereon, plus, if the parties do not
agree, the costs of appraisals shall be deemed assigned to the Contributing
Member from the Non-Contributing Member. Upon such assignment neither the
Non-Contributing Member nor the Company shall be obligated to repay the Advance.
(e) Notwithstanding the provisions of subsections (b), (c) or (d)
above, Telex and its successors and assigns shall not be required to make any
additional capital contributions or loans (including Working Capital Loans) to
the Company, shall not be required to make any payment pursuant to subsections
(c) (ii) and (iii), nor will their Membership Percentage Interest be subject to
reduction under this Article IV.
ARTICLE V
ALLOCATION
The Members agree that the income, gains, credits, losses and
deductions of the Company shall be allocated in accordance with the Code and the
regulations promulgated thereunder as follows:
5.1 Computation of Income, Gains and Losses. All income, gains, losses
deductions and credits of the Company shall be computed as of the end of each
fiscal year in accordance with the accrual method of accounting, which shall be
followed by the Company for federal income tax purposes.
5.2 Allocation of Income and Losses. The income, gains, losses,
deductions and credits of the Company for each fiscal year for book purposes,
whether taxable or nontaxable, other than as provided in Section 5.3, shall be
allocated to each Member's Capital Account in accordance with the following:
(a) First, to Telex all income or gains realized by the Company
until the Company has realized income and gains equal to $558,000 in the
aggregate, and
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(b) Thereafter, to each Member's Capital Account pro rata, in
accordance with its respective Membership Percentage Interest.
5.3 Allocation of Gain or Loss Upon Sale, Exchange or Other
Disposition of All or Substantially All of the Assets of the Company. The gain
or loss realized upon the sale, exchange or other disposition of all or
substantially all the assets of the Company for book purposes, whether taxable
or nontaxable, shall be allocated to each Member's Capital Account pro rata,
in accordance with its respective Membership Percentage Interest.
5.4 Negative Capital Account Balances. If any member has a negative
Capital Account after the liquidation of the Company, he shall not be obligated
to contribute capital in the amount of such deficit.
ARTICLE VI
DISTRIBUTIONS
6.1. Quarterly Distributions. Except as otherwise provided in Sections
6.2, 6.3, and 6.4, Distributions from the Company of income (determined in
accordance with generally accepted accounting principles applied on a consistent
basis) shall be made in such amounts and at such times as determined by the
Manager and approved by Telex, but in any event so long as Telex is not in
default under the Lease, Distributions will be made no less than
quarter-annually. Such Distribution shall be made to each Member ratably in
proportion to its respective Membership Percentage Interest at the time of the
Distribution.
6.2 Sale of Equipment and Excess Land. Distributions of any net
proceeds upon the sale, exchange, or other disposition of equipment and personal
property owned by the Company or a portion of the land owned by the Company
shall be made as follows:
(a) First, to the payment of all debt and liabilities of the
Company against which the Company elects to apply such proceeds,
(b) Then, to any reserves which may be established by the Company
in connection with such sale,
(c) Thereafter, to each Member ratably in proportion to its
respective Membership Percentage Interest at the time of the Distribution.
6.3 Refinancing. Distributions of any net proceeds upon any
refinancing of the debt of the Company shall be made as follows:
(a) First, to the payment of all debt and liabilities of the
Company which is being retired by such refinancing or against which the Company
elects to apply such proceeds,
(b) Then, to any reserves which may be established by the Company
in connection with such refinancing,
(c) Then, to DRF until Distributions from any such refinancing or
refinancings have
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been made to DRF equal to $1,108,000 in the aggregate, subject in any event to
any minimum Capital Account required to be maintained under Section 4.1,
(d) Then, to Telex until Distributions from any such refinancing
or refinancings have been made to Telex equal to the amount distributed to DRF
under (c) above,
(e) Thereafter, to each Member ratably in proportion to its
respective Membership Percentage Interest at the time of the Distribution.
6.4 Sale of All Assets. Distribution of any net proceeds upon the sale
exchange, or other disposition of all or substantially all of the assets of the
Company shall be made in accordance with the provisions of Section 13.2.
6.6 Designation of Character of Distributions. At the time of making
any Distribution to the Members, the Manager shall determine what portion of
such Distribution, if any, is from the income of the Company and what portion of
such Distribution, if any, is a return of the capital of the Company. The
Manager shall advise each Member receiving any such Distributions of such
determination at the time it transmits the annual report to the Members as
provided in Section 9.4.
ARTICLE VII
RIGHTS, POWERS AND DUTIES OF MANAGERS
7.1 Powers of Managers. The Managers shall have all necessary powers
to carry out the purposes and business of the Company, and to take any other
action in that regard. All such powers shall be exercised exclusively through
the Managers. The Managers shall manage the affairs of the Company in a prudent
and businesslike manner for the purposes for which the Company is formed. The
Managers from time to time designate one of the Managers as the chief manager of
the Company and may designate such Manager or another Manager as the treasurer
of the Company. Subject to any limitations which may be adopted by agreement of
the Managers, such Managers will exercise the principal functions of such
positions as set out in Minnesota Statutes, section 322B.673. The Managers from
time to time may also authorize any of the Managers to perform other duties and
carry out other responsibilities as determined by the Managers.
7.2 Special Approval. Notwithstanding anything herein to the contrary,
the Company will not without the prior written consent of both DRF and Telex
(a) sell, assign, transfer, exchange, lease, or otherwise dispose
of the Property or any part thereof or interest therein during the first two
years of the term of the Lease, or
(b) apply for, execute or modify any mortgage, underlying lease,
pledge, encumbrance or other security agreement affecting the Property or any
interest therein until the sixth year of the term of the Lease; or
(c) apply for, execute or modify any mortgage, underlying lease,
pledge, encumbrance or other security agreement affecting the Property or any
interest therein during or after the sixth year of the term of the Lease if the
refinancing would cause a decrease in the projected income and cash flow to the
Company unless adjustments are made in the allocation of income and allocations
of Distributions in cash to put Telex in the same income and cash flow position
as it would have been
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without such refinancing; or
(d) incur any indebtedness on behalf of the Company (other than
indebtedness incurred for meeting unbudgeted obligations arising in any year in
excess of $25,000 in the aggregate (unless such obligations are incurred in an
emergency) and contractual obligations arising under contracts otherwise
permitted under this Agreement).
7.3 Member or Affiliates Dealing with Company. The Company has entered
into a Management Agreement with Frauenshuh Companies of even date herewith
pursuant to which the Company will pay Frauenshuh Companies a management fee for
services rendered to the Company. The Company may further contract or otherwise
deal with a Member or any person affiliated with a Member only in the ordinary
course of business of the Company, and only on terms which are no more favorable
to such Member or person affiliated with the Member than would be obtained in a
comparable arm's-length transaction with an unrelated third party. Except as
otherwise approved by the Members, no Manager or Member shall be entitled to
receive compensation for services provided as a Manager or Member of the
Company, but accounting expenses and other expenses reasonably incurred by the
Managers or any Member in the operation of the Company will be reimbursed by the
Company.
7.4 Other Activities of Members. The Members and their affiliates may
engage in and possess an interest for their own account in other business
ventures of every nature and description, regardless whether in competition with
the Company, independently or with others, including, but not limited to, the
ownership, financing, leasing, operation, management, syndication, brokerage,
investment in and development of real estate; and neither the Company nor any
Member shall, by virtue of this Agreement, have any right in and to such
independent venture or any income or profit derived therefrom.
7.5 Indemnification: Liability of Member. The Company shall indemnify,
defend and hold the Members harmless against any claim, liability or expense
(including attorney's fees) incurred by him in connection with the ownership,
organization, operation, management or liquidation of the Company, its business
or property, except liabilities which are the specific and express
responsibility of the Member under this Agreement and except further for the
gross negligence and bad faith of any Member. Neither the Company nor any
Members shall have any claim against any Member by reason of any act or omission
of any Member for which act or omission indemnification is provided in the
preceding sentence.
ARTICLE VIII
TITLE TO COMPANY PROPERTY
8.1 All property owned by the Company shall be owned by the Company as
an entity and, insofar as permitted by applicable law, no Member shall have any
ownership interest in any Company property in his, her or its individual name or
right, and each Member's Membership Interest shall be personal property for all
purposes.
ARTICLE IX
BOOKS OF ACCOUNT; REPORTS AND FISCAL MATTERS
9.1. Books; Place; Access. The Company shall maintain accurate books
of account using generally accepted accounting principles consistently applied.
The books of account and the records
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shall be kept at the principal office of the Company, and all Members or their
legal counsel or accountant may inspect the Company books and records upon
reasonable notice, and at the expense, of any Member during ordinary business
hours. If at any time Telex or its successor or assign is required to either
consolidate the Company with its financial statements or provide separate
statements of the Company, the Company will provide Telex or such successor or
assign within 55 days after the end of quarter with quarterly financial
statements determined on a Federal income tax basis. If requested by Telex, the
Company at Telex's cost will have the annual financial statements prepared in
accordance with generally accepted accounting principles and audited by an
accountant selected by Telex.
9.2. Bank Accounts. The Manager shall select one or more depositories
for the funds of the Company, and all Company funds shall be deposited in such
account or accounts. Such funds shall be deposited or invested in such manner as
shall be determined by the Manager. Such funds shall not be commingled with
funds of any other limited liability company, limited partnership or other
entity managed or advised by the Manager. All withdrawals from any of such bank
accounts shall be made by the duly authorized Manager.
9.3 Tax Matters. The Manager shall appoint a Member to serve as the Tax
Matters Partner for federal income tax purposes and such Member may make and
revoke any tax election which may be made by the Company, in its sole
discretion. Until such time as the Manager appoints another Member, the Tax
Matters Partner shall be DRF.
9.4 Tax Information. Within seventy-five (75) days after the end of
each fiscal year the Manager shall deliver to each Member adequate tax
information relating to the Company's operations to enable each Member to
complete and timely file all federal, state and local tax returns for which he
may be liable. In addition, the Manager shall provide quarterly and year-end
earnings information to Telex, as required by Telex, for timely reporting and
filing with various regulatory agencies.
ARTICLE X
BUY - SELL PROVISIONS
10.1 Buy - Sell. After March 1, 2002, any Member (the actual Member
being herein called the "Electing Member"), may initiate the buy - sell
provisions of this Article X at any time.
10.2 Notice and Value. The Electing Member shall give written notice to
the other party of its intent to exercise its right pursuant to this Article X.
Such Buy - Sell Notice ("the Buy - Sell Notice") shall set forth a value for
each 1% Membership Interest of the Company net of any prepayment premium and
closing costs arising in connection with such sale. The receiving party shall
have the option to either sell all but not less than all of its Membership
Interest to the Electing Member or to purchase all but not less than all of the
Membership Interest of the Electing Member at the value set forth in the Buy -
Sell Notice. The receiving party shall have sixty (60) working days to respond
in writing ("the Response Notice") and shall indicate its election to either
purchase or sell.
10.3 Closing and Payment. Any closing for the purchase of a Member's
Interest pursuant to this Article X shall occur within sixty (60) days after
receipt of the Response Notice by the Electing Member. The purchase price for
such Member's Interest shall be paid in full in immediately available funds at
closing. If the selling Member or any of its principals or investors have
guaranteed any loans or mortgages of the Company, then as a condition of the
purchase of such Member's Interest under this Article X, such guaranties either
will be released at closing or the purchasing Member will pay off such loans or
mortgages at closing. The closing shall occur at a location agreed upon by both
parties or in the
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event the parties cannot agree on a location, then at the offices of the company
as set forth herein.
10.4 Limitations.
(a) For purposes of this Article X, if Telex is in default under
the Lease at the time of exercise of the right to be the Electing Member and
such default is not cured within the notice or cure period provided therefor
under the Lease, any effective exercise of this right by Telex as Electing
Member shall, at the option of DRF, be terminated.
(b) If DRF has exercised its right hereunder to purchase the
interest of Telex and at the time of the closing of the purchase of Telex'
interest Telex is in default under the Lease, the purchase price otherwise
payable to Telex hereunder shall be applied first to cure any default under the
Lease, and any remaining purchase price shall be paid to Telex.
ARTICLE XI
WITHDRAWAL, TRANSFER AND SUBSTITUTION OF MEMBERS
11.1 Covenant Not to Withdraw, Transfer or Dissolve. Except as
otherwise permitted by this Agreement, each Member hereby covenants and agrees
not to (a) withdraw or attempt to withdraw from the Company, (b) exercise any
power under the Act to dissolve the Company, or (c) transfer all or any portion
of his Membership Interest. Further, each Member hereby covenants and agrees to
continue to carry out the duties of a Member hereunder until the Company is
dissolved and liquidated pursuant to Article XIII hereof.
11.2 Permitted Transfers.
(a) A Member may transfer all or any part of his interest in the
Company at any time to (1) an Affiliate of such Member, (2) any other Member or
(3) to any person who is approved by all of the other Members.
(b) A transferee of a Membership Interest from a Member hereunder
shall be admitted as a Member with respect to such interest if, but only if, (1)
at the time of such transfer, such transferee is an Affiliate of the
transferring Member, (2) at the time of such transfer, such transferee is
otherwise a Member, or (3) the admission of such transferee as a Member is
approved by all of the other Members.
(c) A transferee who acquires a Membership Percentage Interest
from a Member hereunder by means of a transfer that is permitted under Section
11.2, but who is not admitted as a Member, shall have no authority to act for or
bind the Company, to inspect the Company's books, or otherwise to be treated as
a Member. Such transferee shall be entitled only to allocations and
Distributions with respect to such Membership Percentage Interest in accordance
with this Agreement.
11.3 Prohibited Transfers. Any purported transfer of any Membership
Interest held by a Member that is not permitted by Section 11.2 shall be null
and void and of no effect whatever; provided that, if the Company is required to
recognize a transfer that is not so permitted (or if the Company, in its sole
discretion elects to recognize a transfer that is not so permitted), the
interest transferred shall be strictly limited to the transferor's rights to
allocations and Distributions as provided by this Agreement
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with respect to the transferred interest, which allocations and Distributions
may be applied (without limiting any other legal or equitable rights of the
Company) to satisfy the debts, obligations, or liabilities for damages that the
transferor or transferee of such interest may have to the Company.
11.4 Termination of Status as Member. A Member shall cease to be a
Member upon the first to occur of (1) such Member's death, permanent disability,
or mental incompetence, (2) the bankruptcy of a Member, or (3) the involuntary
transfer by operation of law of such Member's Membership Interest. If a Member
ceases to be a Member for any reason hereunder, such Person shall continue to be
liable for all debts and obligations of the Company that the Member was liable
for by reason of being a Member. A Person shall not be liable as a Member for
the debts and obligations of the Company except to the extent such liability
arises solely by reason of being a Member of the Company and, in any event,
shall not be liable for Company debts and obligations arising after such Person
ceases to be a Member. Any debts, obligations, or liabilities to the Company of
any Person who ceases to be a Member shall be collectible by any legal means and
the Company is authorized, in addition to any other remedies at law or in
equity, to apply any amounts otherwise distributable or payable by the Company
to such Person to satisfy such debts, obligations, or liabilities.
11.5 Purchase by Surviving Member. In the event a Member ceases to be a
Member pursuant to Section 11.4 and the business of the Company is continued
without dissolution under Section 13.1, the remaining Member shall acquire such
terminated Member's Financial Rights in the Company in the following manner:
(a) The acquiring Member shall give written notice to the
terminated Member identifying the price that the acquiring Member is willing to
pay for the interest of the terminated Member in the Company, and shall identify
a date at least 60 days after the date of the notice for closing the purchase
and sale transaction.
(b) Within 30 days after the date the terminated Member receives
such notice of exercise from the acquiring Member, the terminated Member shall
respond in writing to the acquiring Member, either accepting the terms contained
in acquiring Member notice, or demanding appraisal pursuant to subsection (c).
If the terminated Member fails to respond within such time, the terminated
Member shall be deemed to have accepted the price proposed by the acquiring
Member in its notice.
(c) If the terminated Member elects appraisal of its interest in
the Company, the price of its interest to be purchased by the acquiring Member
shall be equal to the net proceeds which would be distributed to the terminated
Member if the Company dissolved and was liquidated after selling its assets at a
price determined by an appraisal conducted by a qualified MAI appraiser with
experience appraising real property in the area in which the property to be
appraised is located.
(d) If, for any reason, the price cannot be so ascertained in time
for the purchase and closing as specified in this Section, the parties shall, in
good faith, make their best estimate of what the purchase price would be in
accordance with the foregoing, and closing shall be made on that estimate as a
tentative price. When the price is finally ascertained, it shall be compared to
the tentative price, and any overage shall promptly be refunded by the
terminated Member, or any deficiency shall promptly be paid by the acquiring
Member. In all cases, such adjustment shall be made within 10 days after the
price is finally ascertained.
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(e) If this option is exercised, the closing of the purchase shall
be at a time and place agreeable to the parties, but in any event no later than
90 days after the giving of the required notice. Upon the closing, the purchase
price shall be paid in cash or by wire transfer or cashier's check.
(f) The appraiser shall be selected by agreement of the parties.
If the parties cannot agree upon the appraiser, the parties shall each name an
appraiser who meets the qualifications set forth above, and the value shall be
the average of the two appraisals. In issuing the assignment to the appraiser,
the appraiser shall be instructed to determine the market value of all of the
assets of the Company taking into account the status of the Lease and any debt
financing after the event giving rise to the termination of the terminated
Member's interest.
ARTICLE XII
BREACH OF AGREEMENT
12.1 If any Member ("Defaulting Member") should default in his
performance of any obligation arising under this Agreement (including without
limitation the transfer of any Membership Interests in violation of Article XI),
any other Member or Members ("Nondefaulting Members") may enforce the specific
performance of this Agreement and/or may pursue any other remedies at law or at
equity. The Defaulting Member shall be liable to the Company for all costs and
expense (including attorneys' fees) in connection with such default and the
exercise of any remedies set forth herein.
ARTICLE XIII
TERMINATION AND LIQUIDATION
13.1 Events Causing Liquidation. The Company will dissolve, liquidate
and its business will not be continued upon the happening of any of the
following events:
(a) Upon written consent of all Members;
(b) Upon the expiration of the term of the Company as specified in
Section 1.4 unless such term is extended by amendment to this Agreement;
(c) Upon the sale, exchange or other disposition of all or
substantially all of the assets of the Company;
(d) The insolvency or bankruptcy of the Company;
(e) On the occurrence of any event which, under the laws of the
State of Minnesota and notwithstanding the terms of this Agreement, shall
terminate the Company and require it to be liquidated.
Notwithstanding the foregoing, upon the occurrence of any event that would
otherwise cause the dissolution of the Company, under this Agreement, the Act or
otherwise, the Company shall promptly send a notice of such fact to each Member.
If the Members holding at least a majority of the outstanding Membership
Interests (excluding the interests of any Person who has ceased to be a Member)
or if Telex in its sole discretion shall consent to the continuation of the
business of the Company without
12
dissolution, then the Company shall not dissolve and shall not be required to be
wound up.
13.2 Distribution on Liquidation. Upon an event of liquidation, the
business of the Company shall be wound up, the Manager shall take full account
of the Company assets and liabilities, and all assets shall be liquidated as
promptly as is consistent with obtaining the fair value thereof. If any assets
are not sold, gain or loss shall be allocated to the Members in accordance with
Article VI as if such assets had been sold at their fair market value at the
time of liquidation. If any assets are distributed to a Member, rather than
sold, the Distribution shall be treated as a Distribution equal to the fair
market value of the asset at the time of the liquidation. The assets of the
Company shall be used and distributed in the following order of priority:
(a) To the payment of all debts and liabilities of the Company,
including all fees due the Members and their Affiliates, and including any loans
or advance that may have been made by the Members to the Company, in the order
of priority as provided by law;
(b) To the establishment of any reserves reasonably deemed
necessary by the Manager or the Person winding up the affairs of the Company for
any contingent liabilities or obligations of the Company;
(c) To DRF in an amount equal to $1,108,000 (less any amounts
which have been paid to DRF under Section 6.3(c) in respect of any Distributions
made from the proceeds of a refinancing or refinancings;
(d) To Telex in an amount equal to the amount distributed to DRF
under (c) above; and (e) To the extent of any balance remaining to each Member,
ratably in proportion to its respective Membership Percentage Interest.
ARTICLE XIV
AMENDMENT OF AGREEMENT
14.1 Written Amendment. This Agreement may be amended only by a written
agreement signed by all of the Members.
14.2 Amendment of Articles. In the event this Agreement shall be
amended pursuant to this Article XIV, the Manager shall amend the Articles of
Organization to reflect such change, if the Company's legal counsel deems such
amendment of the Articles of Organization to be necessary.
ARTICLE XV
MISCELLANEOUS
15.1 Notice. All notices, offers, demands, certificates or other
communications required or permitted under this Agreement shall be in writing,
signed by the Person giving the same. Notice shall be treated as given when
personally received, delivered by courier service, or (except in the event of a
mail strike) when sent by certified or registered mail, postage prepaid, return
receipt requested, to a Member at the address as shown from time to time on the
records of the Company. Any Member may specify a different address by notice to
the Manager.
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15.2 Partition. The Members agree that the Company properties are not
and will not be suitable for partition. Accordingly, each of the Members hereby
irrevocably waives any and all rights that he may have to maintain any action
for partition of any Company property.
15.3 Consent and Waiver. No consent under and no waiver of any
provision of this Agreement on any one occasion shall constitute a consent under
or waiver of any other provision on said occasion or on any other occasion, nor
shall it constitute a consent or waiver unless it is in writing and signed by
the party against whom such consent or waiver is sought to be enforced.
15.4 Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Minnesota.
15.5 Number and Gender. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural and pronouns stated in either the masculine, the
feminine or the neuter gender shall include the masculine, feminine and neuter.
15.6 Interpretation. All references herein to Articles, Sections and
subsections refer to Articles, Sections and subsections of this Agreement. All
Article and Section headings are for reference purposes only and shall not
affect the interpretation of this Agreement.
15.7 Severability. If any provision of this Agreement or the
application of such provision to any Person or circumstances, shall be held
invalid, the remainder of the Agreement, or the application of such provision to
Persons or circumstances other than those to which it is held invalid, shall not
be affected thereby.
15.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement binding
on all Members. Each Member shall become bound by this Agreement only upon the
execution of the Agreement by all the Members.
15.9 Necessary Instruments. The Members covenant and agree that they
shall execute any further instruments and shall perform any acts which are or
may become necessary to effectuate and to carry out the terms and conditions of
this Agreement.
15.10 Binding Effect. This Agreement shall bind the Members and their
respective successors and assigns. However, nothing in this Section shall be
construed to permit a transfer of this Agreement or of a Membership Interest in
violation of Article XI hereof.
15.11 Entire Agreement. This Agreement sets forth the entire
understanding between the parties, there being no terms, conditions, warranties
or representations other than those contained herein.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date set forth in
the first paragraph of this Agreement.
TELEX COMMUNICATIONS, INC. DRF TEL LLC,
a a Minnesota limited liability company
-------------------------
By: By:
----------------------- ----------------------------
Xxx X. Xxxxxxx Xxxxx X. XxXxx
Its: President and CEO Its: Manager
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SCHEDULE 1
NAMES AND ADDRESSES AND MEMBERSHIP PERCENTAGE INTERESTS OF
DRF 12000 PORTLAND LLC
Telex Communications, Inc. 50%
Prior to May 1, 2000:
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
From and After May 1, 2000:
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
DRF TEL LLC 50%
c/o Frauenshuh Companies
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
1-1
